One of the primary and often urgent duties of an Estate Trustee is to dispose of the deceased’s body. Often, issues arise with respect to the proper disposal of the deceased’s remains: how it is to be done, and by whom. These issues are exacerbated when the deceased dies intestate. No one has the immediate authority to make the necessary decisions.
The difficulties that can arise are illustrated in the companion decisions of Re Timmerman Estate, 2020 ONSC 3424 (CanLII) and Re Timmerman Estate, 2020 ONSC 3425 (CanLII).There, Marguerite died on October 16, 2019. She was survived by a daughter, Shannon and a son, Craig. Craig died shortly thereafter, on November 12, 2019. Both died without a will and with only nominal assets.
Marguerite’s sister (Craig’s aunt) applied for a Certificate of Appointment as Estate Trustee for both estates. However, she did not have Shannon’s consent or a Renunciation from Shannon, as required by the Rules of Civil Procedure. She applied to the court to dispense with these formalities.
There was evidence before the court that Marguerite wished to be cremated. Shannon objected to this. However, there was evidence that Shannon may have had capacity issues. After raising her objection to the cremations, Shannon appears to have disappeared.
The judge hearing the applications noted that the bodies had remained in a hospital morgue for over 7 months, a delay that was “unconscionable” and “intolerable”, and due for the most part to difficulties in contacting Shannon despite reasonable efforts.
The court granted the applications notwithstanding the lack of consent or a renunciation from Shannon, citing Rules 2.01 and 2.03, which allow a court to dispense with the strict compliance with the Rules of Civil Procedure where it was necessary and in the interest of justice. “It is in no-one’s interests to delay the administration of this estate and, hence, the removal of the bodies and their cremation or burial, because of Shannon Timmerman’s failure or inability to take any steps herself to address the need to attend to these formalities.”
In both estates, the court directed the Estate Trustee to make best efforts to bring the Certificate of Appointment to the attention of Shannon before the bodies were finally laid to rest. However, this requirement was not to unduly delay things further. If Shannon could not be located using best efforts, the Estate Trustee was to proceed with the disposal of the remains as she saw fit.
See here for our blog on The Duty to Dispose of the Body.
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Upon the death of a person, a duty arises to bury or otherwise dispose of the remains in a decent and dignified fashion. But who does this duty fall upon?
It is well established in the jurisprudence for Ontario that plans for the service and burial arrangements are the responsibility of the estate trustee. This responsibility can conflict with the wishes and expectations of the deceased and family members, particularly in a religious context.
In Saleh v. Reichert, the deceased was of the Muslim faith. Her husband had converted to the Muslim faith for the purpose of there marriage. There was evidence indicating that the deceased expressed her wish to be cremated upon her death. The deceased’s husband was appointed as the estate trustee without a will and intended to honour the deceased’s wishes. The deceased’s father objected to the cremation on religious grounds.
The court affirmed the fundamental duty of an estate trustee is to ensure that the remains of a body be disposed of in a decent and dignified fashion. The court held that religious law has no bearing on the case. In Ontario, burial and cremation are both means that would meet the requirement for disposal in a decent and dignified fashion. The deceased’s father’s action was dismissed.
It is important to note that it was acknowledged that there is no property in a body. Therefore, any instructions left by the deceased, whether in a Will or otherwise are only precatory and are not binding on the estate trustee.